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COURTING DISASTER

Some years ago I was fined $25,000 dollars and sentenced to 250 hours of community service. Must have been a pretty serious crime, right? After all we have seen child molesters in Victoria getting much lighter sentences than that.

What I did was name a judge who ruled that a man could not be tried for the alleged rape of his estranged wife under a 350-year-old English-based law.

He let the man walk free and then suppressed all proceedings before the court. He was right to suppress the rapist’s name because publication would obviously have led to the identification of a rape victim which I knew was illegal under Section 4 of the Crimes Act. As it should be.

But before I went to air on 3AW with the Judge’s name I talked to the victim who had gone to her husband’s home to collect some clothes on the day of the attack. She told me of her injuries including brutal digital scratching of her genitals with fingernails.

What angered me was that this brute wasn’t even re-arrested and charged at least with physical assault.

What angered me was that the judge was relying on a 350-year-old law. And so I named him. I figured at least his wife should know who he was. I also reasoned that he had suppressed all matters BEFORE the court. That shouldn’t include his own name because his identification was not before the court. He WAS the court.

The guilty verdict and fine and community service order showed that another court felt differently. Even though I discovered -- too late for my trial -- that the House of Lords had ruled it illegal for judges in Britain to suppress their names. That verdict was based on six Justices of the Peace who tried to suppress their names because (from memory) they feared repercussions from the IRA.

I raise that case because several ancient laws are currently under review in several states. Some of our political and legal leaders have said they should be revamped because they are centuries old. And others say they should not be tampered with because they are centuries old.

The Premier of New South Wales, Bob Carr, is urging national law reform to get rid of the ancient Double Jeopardy law.

Simply, the law means you can’t be tried twice for the same crime –even if damning new evidence comes to light.

This may sound ludicrous but, as I said on radio this week, imagine if somebody came forward with video footage of O.J. Simpson actually stabbing his ex-wife to death? He could not be charged. He’s been acquitted.

Or if Azaria Chamberlain’s body was found in a trunk in Lindy’s attic? The same Double Jeopardy protection would apply.

Once tried and acquitted for a crime you cannot be re-tried, Some people argue that is how it must be. Victorian Attorney-General Rob Hulls is one of them. But in these days of DNA tests old crimes are being solved.

New, conclusive evidence is being produced.

Double jeopardy has in the news for two different reasons. Convicted child rapist Clint Rex Betteridge can’t be tried in Australia for sex offences in Cambodia because he’s already been tried and convicted in absentia over there. Even though he fled top safety in Queensland before the trial. Double Jeopardy.

And then there’s the case of Raymond John Carroll who was convicted of the rape and murder of a little girl thirty years ago but was acquitted on appeal. He was then convicted of perjury but the High Court freed him on the grounds of Double Jeopardy.

A woman has now come forward and claims that she saw Carroll near 17-month-old Deidre Kennedy’s home on the night of the abduction, sexual assault and murder.

Carroll has always claimed he was in South Australia on an RAAF training course that night when Deidre Kennedy was murdered and her body thrown on top of a toilet block in Ipswich, Queensland.

Nothing can be done about the new damning evidence because of Double Jeopardy. A probable child-killer stays free.

The Double Jeopardy laws have recently been changed in England – the place from which most our laws come. And I was intrigued to learn this week that in Scotland they have three possible verdicts not two. There’s Guilty, Not Guilty and Not Proven.

In a case of Not Proven that would give the State leeway to go back to court for a new trial if convincing new evidence (especially DNA) was discovered.

The other possible change to an old law is one being pursued by Attorney-General Hulls.

This involves people acquitted purely on technical and legal grounds and often by mistake.

Hulls is seeking advice on a change that would permit a prosecutor to appeal against a judge’s legal directions mid-trial. Before a verdict is handed down and a defendant set free.

This would be known, I’m sure, as the Elliott amendment. Back in 1997 John Elliott was acquitted, along with other former IXL directors on charges of theft and conspiracy to defraud involving an allegedly sham foreign exchange transaction of more than 66 million dollars.

One executive in Melbourne pleaded guilty and actually went to jail. Another man was jailed in New Zealand.

Early in the trial, before a jury was even empanelled, Justice Frank Vincent in the Victorian Supreme Court directed that Elliott and other defendants be found Not Guilty on the grounds the National Crime Authority had exceeded its powers and most of the evidence against the accused could not be introduced.

The Victorian Court of Appeal rejected Judge Vincent’s rulings that saw Elliott walk free and described his key ruling on the scope of the NCA’s powers as “ erroneous”. But Elliott and team were not re-tried on charges involving $66 million. Virtually Double Jeopardy.

I am not saying old laws are necessarily bad. Some are not necessarily good purely on the age factor.

February 16, 2003

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©Copyright Derryn Hinch 2002